In Blake v. The Attorney General[1982] I.R. 117 the Supreme Court held (inter alia) that
Part 2 of the Rent Restrictions Act, 1960, which restricted the amounts of the rents payable to
their landlords by tenants of controlled dwellings, was invalid having regard to the provisions of
the Constitution of Ireland, 1937, in that those provisions constituted an unjust attack on the
property rights of certain landlords contrary to Article 40, s. 3, sub-s. 2, of the Constitution
since those provisions restricted the exercise of the property rights of one group of citizens for
the benefit of another group in a manner which failed to provide compensation for the first
group and which disregarded the financial capacity or needs of the members of the groups. Five
months later, both Houses of the National Parliament passed the Housing (Private Rented
Dwellings) Bill, 1981. The provisions of the bill were expressed to apply to every dwelling which
was a controlled dwelling under the Act of 1960. The bill provided that the rent of a dwelling to
which the bill applied was to be the agreed rent or the rent fixed by the District Court. Section 6
of the bill stated that, when fixed by the District Court, the rent of such dwelling was to be the
rent which, in the opinion of that court, a willing lessee who was not in occupation would give,
and a willing lessor would take, for such dwelling on the basis of vacant possession being given
to the tenant, and having regard to the other terms of the tenancy and to the letting values of
dwellings of a similar character to the dwelling and situate in a comparable area.

Section 9 of the bill stated that, where the rent of such dwelling was fixed by the District
Court, the rent payable by the tenant of the dwelling was to be the amount of his former rent
plus, in the year 1982, 40% of any increase awarded by the District Court, in the year 1983 55%
of any increase, in the year 1984 70% of any increase, in the year 1985 85% of any increase, and
in the year 1986 and subsequent years the entire amount of the increase.

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Pursuant to Article 26, s. 1, sub-s. 1, of the Constitution, the President of Ireland referred
the bill of 1981 to the Supreme Court for a decision on the question whether the bill, or any
provision or provisions of the bill was or were repugnant to the Constitution or to any provision
thereof. In pronouncing its decision on the question so referred, it was

Held by the Supreme Court, 1, that there was a rebuttable presumption that the provisions
of the bill were not repugnant to the Constitution.

2. That, in the absence of any justification permitted by the Constitution, the provisions of
s. 9 of the bill, depriving the persons affected thereby of substantial portions of their proper
rents, constituted an unjust attack on their property rights contrary to Article 40, s. 3, sub-s. 2,
of the Constitution.

The Housing (Private Rented Dwellings) Bill, 1981, was passed by both
Houses of the Oireachtas on the 17th December, 1981. On the 24th
December, 1981, the President of Ireland referred the bill to the Supreme
Court pursuant to the provisions of Article 26, s. 1, sub-s. 1, of the
Constitution of Ireland, 1937, for a decision "on the question as to whether
the said Bill or any provision or provisions thereof is or are repugnant to the
Constitution or to any provision thereof." The Supreme Court assigned
solicitor and counsel to oppose the constitutionality of the bill. Sections 6-10
of the bill were the sections primarily impugned.

Article 26, ss. 1-3, of the Constitution of Ireland, 1937, which is
expressed to be applicable to all bills passed or deemed to have been passed
by both Houses of the Oireachtas (with certain limited exceptions, none of
which are relevant to the reference) provides as follows:—

"1. 1 The President may, after consultation with the Council of State,
refer any Bill to which this Article applies to the Supreme Court for a
decision on the question as to whether such Bill or any specified provision or
provisions of such Bill is or are repugnant to this Constitution or to any
provision thereof.

2 Every such reference shall be made not later than the seventh day
after the date on which such Bill shall have been presented by the Taoiseach
to the President for his signature.

3 The President shall not sign any Bill the subject of a reference to
the Supreme Court under this Article pending the pronouncement of the
decision of the Court.

2. 1 The Supreme Court consisting of not less than five judges shall
consider every question referred to it by the President under this Article for
a decision, and, having heard arguments by or on behalf of the Attorney
General and by counsel assigned by the Court, shall pronounce its decision
on such question in open court as soon as may be, and in any case not later
than sixty days after the date of such reference.

2 The decision of the majority of the judges of the Supreme Court
shall, for the purposes of this Article, be the decision of the Court and shall
be pronounced by such one of those judges as the Court shall direct, and no
other opinion, whether assenting or dissenting, shall be pronounced nor
shall the existence of any such other opinion be disclosed.

3. 1 In every case in which the Supreme Court decides that any
provision of a Bill the subject of a reference to the Supreme Court under
this Article is repugnant to this Constitution or to any provision thereof, the
President shall decline to sign such Bill . . .

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3 In every other case the President shall sign the Bill as soon as may
be after the date on which the decision of the Supreme Court shall have
been pronounced."

Article 40, s. 3, of the Constitution provides:—

"1 The State guarantees in its laws to respect, and, as far as practicable,
by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from
unjust attack and, in the case of injustice done, vindicate the life, person,
good name, and property rights of every citizen."

Article 13, s. 3, sub-s. 1, of the Constitution states:— "Every Bill passed
or deemed to have been passed by both Houses of the Oireachtas shall
require the signature of the President for its enactment into law."

Article 45 of the Constitution provides:— "The principles of social
policy set forth in this Article are intended for the general guidance of the
Oireachtas. The application of those principles in the making of laws shall
be the care of the Oireachtas exclusively, and shall not be cognisable by any
Court under any of the provisions of this Constitution."

Pursuant to Article 26, s. 2, sub-s. 1, of the Constitution the Supreme
Court on the 19th-22nd January, 1982, the Supreme Court (O'Higgins C.J.,
Walsh, Henchy, Griffin and Hederman JJ.) heard arguments by the Attorney
General and by counsel assigned by the Court to oppose the constitutionality
of the bill.

The decision of the Supreme Court was pronounced by one of the
judges of that court in accordance with the provisions of s. 2, sub-s. 2, of
Article 26 of the Constitution.

O'Higgins C.J.

19th February 1982

This is a reference of the Housing (Private Rented Dwellings) Bill,
1981, made by the President of Ireland on the 24th December, 1981,
pursuant to Article 26, s. 1, of the Constitution. Pursuant to s. 2, sub-s. 1, of
that Article, the Court assigned counsel to contend that the Bill is repugnant
to the Constitution. In the course of their submissions to the Court, they
have argued that the Bill is repugnant in several of its provisions. The
Attorney General and counsel on his behalf have argued that there is no
repugnancy.

The whole Bill comes before the Court pursuant to the reference thus
made. The relevant constitutional provisions stipulate that, when a bill such
as this is passed or deemed to have been passed by both Houses of the
Oireachtas, the President may, after consultation with the Council of
State, refer it to the Supreme Court for a decision on the question
as to whether the bill, or any provision or provisions of it, is or are
repugnant to the Constitution or to any provision thereof.

The Supreme Court, consisting of not less than five judges, is required
to consider every question referred to it by the President under Article 26.
Before pronouncing its decision, the Court must hear arguments by, or on
behalf of, the Attorney General and by counsel assigned by the Court. Its
decision must be pronounced in open court as soon as may be and, in any
case, not later than 60 days after the date of the reference. If the Court
decides that any provision of the referred bill is repugnant to the Constitution
or to any of its provisions, the President shall decline to sign the
bill. Otherwise, the President shall sign the bill as soon as may be after the
decision of the Court has been pronounced.

As is provided by Article 34, s. 3, sub-s. 3, of the Constitution, no court
whatever shall have jurisdiction to question the validity of a law, or any
provision of a law, the bill for which shall have been referred to the
Supreme Court by the President under Article 26, or to question the validity
of a provision of a law, where the corresponding provision in the bill for

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such law shall have been referred to the Supreme Court by the President
under Article 26.

It is to be noted that the Court's function under Article 26 is to
ascertain and declare repugnancy (if such there be) to the Constitution in a
referred bill or in the specified provision or provisions thereof. It is not the
function of the Court to impress any part of a referred bill with a stamp of
constitutionality. If the Court finds that any provision of a referred bill or of
the referred provisions is repugnant, then the whole bill fails for the
President is then debarred from signing it—thus preventing it from becoming
an Act. There thus may be areas of a referred bill or of referred provisions
of a bill which may be left untouched by the Court's decision. The authors of
a bill may therefore find the Court's decision less illuminating than they
would wish it to be.

Article 26, s. 2, sub-s. 1, says that the Court's decision is to be reached
after hearing arguments by, or on behalf of, the Attorney General and by
counsel assigned by the Court. That article makes no reference to the
hearing of evidence. In fact, in none of the references that have come to the
Court so far has evidence been heard. The difficulties that could confront a
court of at least five judges in reaching a unitary decision on the basis of
conflicting evidence is too obvious to need elaboration. It is not necessary in
this case to decide whether evidence may, or should be, heard when
considering a reference under Article 26. In this, as in all earlier references,
the matters argued have had, in the absence of evidence, to be dealt with as
abstract problems, to the extent that, unlike practically all other cases that
come before the Court, there is an absence or shortage of concrete facts
proven, admitted, or projected as a matter of probability. The Court,
therefore, in a case such as this, has to act on abstract materials in order to
cope with the social, economic, fiscal and other features that may be crucial
to an understanding of the working and the consequences of a referred bill.
Whether the constitutionality of a legislative measure of that nature which
has been passed, or is deemed to have been passed, by both Houses of the
Oireachtas is better determined within a fixed and immutable period of time
by means of reference under Article 26 (in which case, if no repugnancy is
found, the decision may never be questioned again in any court), rather than
by means of an action in which specific imputations of unconstitutionality
would fall to be determined primarily on proven or admitted facts, is a
question on which we refrain from expressing an opinion.

Ryan v. The Attorney General 2 [1965] I.R. 294.
is a good illustration of the procedural
difficulties and differences already mentioned. In that case the plaintiff
questioned the validity of an Act of the Oireachtas. The result depended on
findings of fact based on lengthy oral evidence which was largely scientific in
nature and complex in character. This Court upheld the High Court decision
(that the Act was not invalid) on the basis of that court's findings of fact;

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but the Court made it clear that, if in the future the scientific evidence
available should be such as to warrant a different conclusion on the facts, the
question of the validity of the Act could be reopened. If the bill for that Act
had been referred to the Court under Article 26 of the Constitution, the case
for invalidity would have broadly been the same, yet it is doubtful in the
extreme if it would have been possible for the Court, not later than 60 days
after such reference, to have heard and determined all the matters which
necessarily fell to be determined in that case. Furthermore, the Court's
decision on such a reference would have been subject to the provisions of
Article 34, s. 3, sub-s. 3, of the Constitution.

The Court has entered on the foregoing exposition of the essential
features of a decision on a reference under Article 26 (and of some of the
ways in which such a decision is unique in the manner in which it is reached
and in its consequences) in order to dispel what sometimes appears to be a
misapprehension of the nature and extent of the Court's jurisdiction in a
matter such as this. With those incidents of jurisdiction in mind, the Court
now addresses itself to the particular problems inherent in the instant
reference.

The bill in question is the Housing (Private Rented Dwellings) Bill,
1981. It comprises a long title, 23 sections and a schedule. In considering the
question raised in the reference, the Court extends to this Bill the presumption
of constitutionality which is ordinarily enjoyed by Acts of the
Oireachtas.

The Bill was passed by both Houses of the Oireachtas in order to deal
with the situation resulting from this Court's decision in Blake v. The
Attorney General .3 [1982] I.R. 117.
In its judgment in that case this Court declared Parts II
and IV of the Rent Restrictions Act, 1960 (as amended), to be invalid having
regard to the provisions of the Constitution. The Court's conclusion was that
the rent control and certain other provisions contained in that Act were so
restrictive, intrusive and unfair as to constitute an unjust attack on
landlords' property rights. The Court found (p. 138) that the legislation then
impugned "applied only to some houses and dwellings and not to others;
that the basis for the selection is not related to the needs of the tenants, to
the financial or economic resources of the landlords, or to any established
social necessity; and that, since the legislation is now not limited in duration,
it is not associated with any particular temporary or emergency situation."The Court concluded its judgment in relation to the provisions of Part II of
the Rent Restrictions Act, 1960 (as amended), by expressing the opinion (p.
139) that those provisions "restrict the property rights of one group of
citizens for the benefit of another group. This is done, without compensation
and without regard to the financial capacity or the financial needs of either
group, in legislation which provides no limitation on the period of restriction,
gives no opportunity for review and allows no modification of the

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operation of the restriction. It is, therefore, both unfair and arbitrary. These
provisions constitute an unjust attack on the property rights of landlords of
controlled dwellings and are, therefore, contrary to the provisions of Article
40, s. 3, sub-s. 2, of the Constitution."

As indicated, the present Bill is intended to deal with the situation
which arose following the declarations of invalidity in the Blake Case .3 [1982] I.R. 117.
In
examining its provisions this Court must have regard not only to the effect of
these provisions on the property rights of those affected (being both tenants
and landlords) but also, where appropriate, to the views expressed by this
Court in the Blake Case .3 [1982] I.R. 117.

The Bill is described in its long title as "An Act to provide, in accordance
with the exigencies of the common good, for a measure of security of tenure for
the tenants of certain dwellings, for a reasonable return for landlords on their
rented dwellings and for the eventual cesser of the entitlement of such tenants
to retain possession of such dwellings, to provide for the registration of rented
dwellings and for standards for rented dwellings and to provide for other
matters connected with the matters aforesaid."

By s. 2 of the Bill the reference in the long title to "certain dwellings" is
defined by the application of the Bill to "every dwelling which, immediately
before the commencement of this Act, was a controlled dwelling within the
meaning of the Rent Restrictions Acts, 1960 and 1967." It is, therefore, clear
that the Bill is intended to apply only to some rented dwellings. The new
legislative provisions affect the amount of the rent payable and the conditions
and terms upon which tenants hold their dwellings, and restrict the
recovery of possession by landlords. The dwellings intended to be affected
are of the same category of dwellings in respect of which this Court in its
judgment in the Blake Case 3 [1982] I.R. 117.
stated (p. 138) that "the basis for the selection
is not related to the needs of the tenants, to the financial or economic
resources of the landlords, or to any established social necessity." The
Attorney General has submitted that the basis for the selection of the same
category of dwellings to be covered by the Bill derives from this Court's
judgment in the Blake Case 3 [1982] I.R. 117.
and that the necessary rectifying legislation
need not go beyond that category. The Court notes this submission and is
prepared to accept that it supplies a valid reason for the application of the
Bill to this category of rented dwellings and not to others.

The Court has considered the long title of the Bill, as indicating its
purpose and intent, and finds nothing therein which could be regarded as
being repugnant to the Constitution. The question is whether any of the
particular legislative provisions in the body of the Bill are in themselves free
from repugnancy, regardless of any legislative or administrative measures
which may be taken in order to achieve the objectives set out in the long
title. In considering this question, the Court proposes to examine in the first

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instance the broad scheme of the Bill and then to consider in more detail
certain important provisions.

For the purpose of achieving the objective of security of tenure set out
in the long title, the Bill proposes to substitute, for such rights as "a tenant"may have, a statutory entitlement to retain possession of the dwelling during
(a) the "tenant's" life, (b) on the "tenant's" death, during the life of his or
her spouse, and (c) on the death of the survivor, in respect of a qualified
member of the family during the unexpired period, if any, of 20 years from
the enactment of the Bill as on Act. At the end of that period, the proposed
statutory protection of possession ceases and the dwelling reverts to the
exclusive control of the landlord. This statutory entitlement to remain in
possession, for at least the lifetime of the tenant and of the spouse, has
particular benefits for the tenant where the pre-existing entitlement to
possession is based on a periodic contractual tenancy of a weekly, monthly
or yearly nature, or, indeed, on no tenancy at all. However, the benefit is
not so clear, and may not exist, where the pre-existing tenancy is based,
as it could be under s. 3, sub-s. 6, of the Rent Restrictions Act, 1960 (as
amended), on a term of years not exceeding 21 years. As a consequence of
the creation of this new form of tenure (which is to be personal to the
tenant, spouse, and members of the family, and which is to be of limited
duration), the Bill provides that the new tenancy will not be assignable and
that the tenant will no longer enjoy the rights he or she formerly had to rely
on his or her protected occupancy for the purpose of qualifying for a new
tenancy under the Landlord and Tenant Act, 1980.

Provision is made for the determination of the terms of the new tenancy
either by agreement between the tenant and the landlord or, in default
thereof, by the District Court. In so far as the landlord is concerned, the Bill
prevents the recovery of possession of the dwellinghouse during the tenancy,
unless he or she can establish one or more of the grounds set out in section
12. These grounds are broadly the same as those which could have been
raised under s. 29 of the Rent Restrictions Act, 1960 (as amended). There is,
however, one important change under the Bill; if the landlord recovers
possession for occupation as a residence for himself or herself, or for a
person in his or her whole-time employment, or in the interests of good
estate management, he must pay such sum as the District Court may
determine in respect of the tenant's expenses of quitting the dwelling,
together with up to two years rent of alternative accommodation.

This being the broad scheme of the Bill, it is clear that it varies
pre-existing rights (where such exist) of both the tenant and the landlord in
respect of controlled dwellings. It has been urged on the Court that in some
respects this interference, under the guise of control, amounts to an unjust
attack on the property rights of both tenants and landlords. However, the

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Court notes that the major criticism of the Bill's provisions is directed at
those which determine the rent that is to be paid by the particular tenant
and accepted by the landlord in respect of each dwelling.

The Court now proposes to examine those particular provisions in the
Bill. The provisions which provide for the fixing of the rent, the determination
of the amount to be paid, the review thereof and other ancillary
provisions, are ss. 6, 7, 8, 9 and 10 of the Bill. Under s. 6 the District Court
is obliged to determine the gross rent of a dwelling when application is made
under the rent-fixing provisions. This gross rent is defined as "the rent
which, in the opinion of the Court, a willing lessee not already in occupation
would give and a willing lessor would take for the dwelling, in each case on
the basis of vacant possession being given, and having regard to the other
terms of the tenancy and to the letting values of dwellings of a similar
character to the dwelling and situate in a comparable area." The rent to be
fixed by the District Court is this gross rent "reduced by an allowance for
any improvements, and any such allowance shall be such proportion of the
gross rent as is, in the opinion of the Court, attributable to the improvements."Provision is made under s. 7 for a review of the rent, on the
application of either the landlord or the tenant, at any time after the
expiration of five years from the date on which the rent was last fixed by the
District Court. Notwithstanding that the rent may have been fixed by
agreement between the landlord and the tenant, the District Court is given
power by s. 8, on the application of either landlord or tenant made not
earlier than one year from the date of the agreement, to fix a new rent.

Section 9, sub-s. 1, determines, in respect of the years 1982 to 1986, the
actual rents which will be payable in each of these years by the tenant. It
provides as follows:—

"9.—(1) Where the rent of a dwelling to which this Act applies is fixed
by the Court—

(a) the rent payable by the tenant shall be an amount equal to the
rent payable by him at the commencement of this Act together
with—

(i) in the year 1982, 40 per cent. of the difference between
that rent and the rent fixed by the Court,

(ii) in the year 1983, 55 per cent. of that difference,

(iii) in the year 1984, 70 per cent. of that difference, and

(iv) in the year 1985, 85 per cent. of that difference.

(b) in the year 1986 and in subsequent years, the rent payable by
the tenant shall be the rent fixed by the Court."

Under sub-s. 2 of s. 9 provision is made whereby the District Court
may, on the application of the landlord, increase those percentages having
regard to the circumstances of the landlord and tenant. However, this
application is not permitted to be made by a landlord who purchased the

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dwelling on or after the 31st December, 1960 (the date of the coming into
operation of the Rent Restrictions Act, 1960), or by his successor in title.
Section 10 enables the District Court to backdate the payment of a rent so
fixed to the date of the institution of the proceedings to fix the rent, and to
order the tenant to pay to the landlord (in respect of the period from such
institution to the date of hearing) an amount not exceeding the difference
between the new rent payable by the tenant and his existing rent.

Having carefully considered the submissions of counsel on both sides of
the case, the Court is of the opinion that the intent of the Bill is that the
gross rent to be determined by the District Court under s. 6, in accordance
with the criteria therein set out, is to be regarded as the just and proper
rent.

The effect of the rebates permitted by s. 9 is that, for a period of five
years after the enactment of the Bill as law, landlords are to receive an
amount which will be substantially less than the just and proper rent payable
in respect of their property. In the absence of any constitutionally permitted
justification, this clearly constitutes an unjust attack upon their property
rights. The Bill offers no such justification for depriving the landlord of part
of his or her just rent for the period specified in the Bill. This Court has
already held that the pre-existing rent control constituted an unjust attack
upon property rights. In such circumstances, to impose different but no less
unjust deprivations upon landlords cannot but be unjust having regard to
the provisions of the Constitution.

Having come to the foregoing conclusion with regard to the provisions
of s. 9 of the Bill, in so far as it affects the rights of landlords of controlled
dwellings, the Court would normally conclude its judgment. However, the
Court has regard to the fact that the legislation proposed in this Bill also
affects the rights of tenants, and counsel arguing against the Bill have
propounded specific arguments that the Bill is unconstitutional because it
infringes the constitutional rights of the tenants affected thereby. Accordingly,
the Court proposes to make some brief observations with regard to
such arguments.

The Court recognises that hardship may be caused to some tenants
required to pay even the abated rents provided for in s. 9 of the Bill. As the
financial means of tenants may vary considerably, it is not possible for the
Court, nor is it the function of the Court in this case, to determine in which
particular instances the ensuing hardship could or would amount to an
injustice of the type to which Article 40, ss. 1 and 3, of the Constitution
applies. On the assumption that undue hardship is likely to be caused in
some instances, a question may arise whether such hardship would amount
to an unjust attack upon the property rights of a tenant contrary to Article
40, s. 3, of the Constitution, or would amount to an unjustifiable treatment
of such tenant in contravention of Article 40, s. 1, of the Constitution.

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Because of the decision the Court has already reached, it is unnecessary
to consider this matter further. However, having regard to the obligation
imposed on the State by the Constitution to act in accordance with the
principles of social justice, the Court recognises the presumption that any
such hardship will be provided for adequately by the State.

It is not, therefore, necessary to pronounce upon any other provisions
of the Bill, some of which are surprisingly unclear. It is also to be pointed
out that the whole of Part II of the Rent Restrictions Act, 1960 (as
amended), was declared by this Court to be invalid having regard to the
provisions of the Constitution. Therefore, every section thereof had been
void ab initio. The schedule to the Bill appears to indicate that either it was
not intended to re-enact provisions similar to those formerly contained in
ss. 33, 34, 35 and 36 of the Act of 1960, or that it was wrongly assumed that
they are still in force.

The decision of the Court, as contained in this judgment, will be
conveyed to the President.